Mark Washofsk

87. Allan C. Hutchinson , It's All In The Game: A Nonfoundationalist Account of Law and Adjudication(Durham , NC : Duke University Press , 2000), 25

88.“The law wishes to have a formal existence. This means, first of all, that the law does not wish to be absorbed by, or declared subordinate to, some other nonlegal-structure of concern and second, the law...desires that the components of its autonomous existence be self-declaring and not be in need of piecing out by some supplementary discourse.” Stanley Fish ,“The Law Wishes to Have a Formal Existence,” in Austin Sarat and Thomas R. Kearns. eds., The Fate of Law(Ann Arbor : University of Michigan Press , 1991), 159-208. The quotation is at 159

89. Hans Kelsen , The Pure Theory of Law (Berkeley : University of California Press , 1967), 192

90. I take this description from G. Edward White , who describes the once-predominant conception of judges as“oracles” who merely find the law and do not make it,“mechanically applying existing rules to new situations” and“who could discover the law’s technical mysteries but who could not influence the content of the law itself.” See The American Judicial Tradition (New York : Oxford University Press , 1976), 7-8. 1 presume that White derives his description from Sir William Blackstone , Commentaries on the Laws of England 1:3(facsimile first edition, 1765. Chicago : University of Chicago Press , 1979), 69.

91. See Owen Fiss ,“Objectivity and Interpretation,” Stanford Law Review 34(1982), 739-763

92. For moral arguments of behalf of the“rule of law” see Lon I. Fuller, The Morality of Law (New Haven : Yale University Press , 1969) and Neil MacCormick ,“The Ethics of Legalism,” Ratio Juris 2(1989), 184-193.

93. See Owen M. Fiss ,“The Death of the Law?” Cornell Law Review 72(1986), 1-16, who attacks two legal academic“movements,” Law and Economics and Critical Legal Studies , for distorting the purposes of law by denying the integrity of its own discourse.

94.“Gut reasoning,” translated literally into Hebrew , sevarat hakeres, a concept found in numerous responsa(see, for example Resp. Terumat Hadeshen 2:92. near the end). In my experience, sevarat hakeres almost always conveys a less-than-positive connotation. It is invoked in support of the view that a posek ought to have a better and more formally halakhic reason to justify his conclusion than an argument he feels, as it were, from his kishkes.

95. See the regrets of the rabbis forced to rule stringently on the agunah question in Kahana (note 72, above).

96. The precise term“critique of methodology” is taken from Edward L. Rubin(note 3, above) at 18384. The quotation is at 1839.